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1 Free Movement of European Union Citizens and Employment in the Public Sector Current Issues and State of Play Part I General Report Report for the European Commission by Jacques Ziller Professor of European Union Law, Università degli Studi di Pavia European Group for Public Administration (EGPA) European Commission, 2010

2 The opinions expressed are those of the author(s) only and should not be considered as representative of the European Commission s official position. * * * Abbreviations Art. EEA EEC EC ECJ EUPAN ILO OECD SIGMA TEU TFEU Article European Economic Area (all EU Member States + Iceland, Liechtenstein and Norway) European Economic Community European Community Court of Justice of the European Union (formerly Court of Justice of the European Communities) European Public Administration Network informal cooperation of Member States on public administration issues International Labour Organisation Organisation for Economic Co-operation and Development Support for Improvement and Management in Government (OECD-EU programme) Treaty on the European Union Treaty on the Functioning of the European Union 2

3 Table of Contents Context and Aims of the Report 7 Introductory Chapter 9 1. FREE MOVEMENT OF WORKERS AND THE PUBLIC SECTOR 10 1a. Free movement of workers and EU citizens right to free movement and residence 1b. Mutual respect and sincere cooperation between the EU and its Member States 11 1c. EU citizenship and Member States citizenship 13 1d. The prohibition of discrimination and of obstacles to professional freedom in the public sector 1. Prohibition of direct discrimination based on the nationality of EU citizens Prohibition of indirect discrimination based on nationality and obstacles to free movement of workers Free movement of workers in the public sector test 19 1e. The exemption of employment in public administration in Art. 45 (4) TFEU The meaning of employment in : nationality as a condition for access to certain posts three consequences 2. The meaning of the public service : public administration The meaning of employment in the public service : functional approach to posts involving the exercise of public authority and the safeguard of general interests Exercising public authority and safeguarding general interests on a regular basis? Free movement of workers in the public sector test 1f. Posts under private employment involving the exercise of public authority and the safeguard of general interests SPECIFIC FEATURES OF MEMBER STATE S PUBLIC SECTOR 2a. A legal perspective on the public sector and free movement of workers 2ai. Member States as regulators of employment in the public service The duty to give grounds and provide for remedies 2. Liability for breach of EU law 2aii. Member States public authorities as employers 27 2b. A public administration/public management perspective on the public sector and free movement of worker Public authorities freedom of choice in organising their civil service 2. Free movement of workers as an asset for public management 30 2c. A labour market perspective on free movement of workers in the public sector More than 20 % of total employment 2. A rather stable sector of employment A complex sector of employment with important needs in specialised skills 3. PRINCIPLES FOR THE NTERPRETATION AND APPLICATION OF EU LAW TO THE FREEDOM OF MOVEMENT OF PUBLIC SECTOR WORKERS 3

4 3a. The functional approach: looking for effectiveness in applying the principle of free movement and related norms 33 3b. Restrictive interpretation of the exceptions or limitations to the principle of free movement 34 3c. Duty of consistent interpretation of national law with EU law 3d. Direct applicability of the principle of free movement and primacy of EU law on national law 3e. Proportionality of national measures having a limiting impact on the principle of free movement 35 3f. Obligation of public authorities to give reasons and to provide for remedies 36 Chapter 2 General Data Required for the Assessment of Issues of Free Movement of Workers in the Public Sector Date of Applicability of EU Law: The Time to Adapt 2. State Form and Levels of Government: Organisational Autonomy but No Justification for Non Compliance Official Languages: a Union with More Languages than Member States Statistical Data: In Need of Common Indicators 41 Chapter 3 Legal, Organisational and Economic Aspects to Take into Account for Understanding the Issues of Employment in the Public Sector Relevant Legal Sources: the Constitution, Law, Regulations and the Values of the Public Sector Constitution: the relevance of constitutional principles and provisions Legislation and general regulations: comparability of general statuses/staff regulations Values of public sector regulation and scope of general staff regulations in the public sector Public Sector Employers: Facing the Puzzle of Horizontal and Vertical Fragmentation Horizontal fragmentation between levels of government central, regional, local Vertical fragmentation at the same level of government Coordination as compensation for fragmentation Public Sector Workers: Taking Duly into Account Civil Servants, Contract Workers and Others Information is often limited to a category of public workers The content of legal statuses of public sector workers Appeals and Remedies: Tools for Enforcement and Sources of Information on Obstacles to Free Movement The EU law requirement to give reasons and to make judicial review available Specific procedural rules and/or competent bodies for appeal 62 Chapter 4 Potential Sources of Discrimination and Obstacles to Free Movement of Workers in the Public Sector Legislation and General Regulation of Access and Employment Conditions: a Necessary but not Sufficient Parameter of Assessment Legal sources: the difficulties of assessment and comparison 4

5 1. 2. Practice: general lack of information and symptoms of misunderstandings Special Requirements for Access to Employment and Working Conditions Professional experience: organising mutual recognition Seniority: organising the portability of working periods Language requirements: assessing proportionality Other potential obstacles to free movement of workers in the public sector Professional qualifications for regulated professions Specific obstacles to entry in the public service 3. pension rights Family members 5. Residence Formal status 7. Secondment 8. Burden of the Proof 85 Chapter 5 Posts Reserved to Nationals According to Article 45 (4) TFEU: Understanding the Functional Approach Relevant Laws and Regulations: Assessing the Rigidity of Legal Impediments to Access to Posts Constitutional Provisions Legislative provisions Definition of Posts: from Formal Coincidence with EU Law Criteria to Apparent Contradiction with Article 45 (4) TFEU 3. Practice and Monitoring: Misunderstandings and Lack of Information Compliance with EU Law: Few Obvious Cases of Non-Compliance, or Overall Good Compliance? Chapter 6 Summary of Findings and Recommendations A Tentative Assessment of Issues of Compliance with Free Movement of Workers in the Public Sector Understanding free movement of workers in the public sector Identifying and removing obstacles to free movement of workers in the public sector Understanding the functional approach to posts reserved to nationals according to Article 45 (4) TFEU Reforms and Coming Trends: Public Sector Reform and Free Movement of Workers in the Public Sector Recommendations Summary of recommendations Free movement of workers in the public sector test 109 References 113 5

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7 Context and Aims of the Report This report has been written at the beginning of 2010 for the European Commission, Directorate General for Employment, Social Affairs and Equal Opportunities by an independent expert. The Commission wanted to investigate the current state of play in the national legislation, the reforms undertaken since 2005 and the way the legislation is applied in practice in order to implement the right to free movement of workers in the public sector of EU Member States. The aim was to obtain an overview of the developments, achievements and remaining challenges for Member States, in particular in the public administration, public health and public teaching sectors. The Commission wants to use this information for its monitoring task and for information of EU citizens, public authorities in the Member States, trade unions and other organisations interested in the topic. The author of the report, Jacques Ziller, is currently professor of European Union Law at the Università degli Studi di Pavia. He is a member of the Steering Committee of the European Group for Public Administration (EGPA). He has been teaching comparative public law, European community law, public administration and public management, and has been doing research, as well as training for senior civil, at the University of Paris 1 Panthéon-Sorbonne, at the European University Institute, Florence, at the College of Europe, Bruges, at the European Institute of Public Administration (IEAP/EIPA), Maastricht, and at the Institut International d Administration Publique (IIAP), Paris. The report is based upon the information given by Member States authorities in response to questionnaires addressed to them by the European Commission in 2009; upon the reports written by the Network of experts in the field of free movement of workers established by the European Commission, which are published together with the Member States' comments; upon information collected by Member States authorities in the framework of the Human Resources Working Group, which is a working party of the EUPAN [European Public Administration Network informal cooperation of Member States on public administration issues] (see References). The report further relies on information gathered by the author in specialised literature (law journals, handbooks and monographs, as well as specialised databases and documents available in research centres and on the Internet). This report contains the findings and ideas of its author as an independent expert; it does not commit the European Commission. 7

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9 Introductory Chapter After that of maintaining peace, the first objective of the European Union, according to the Treaty on the European Union (TEU) as reformed by the Lisbon treaty, is to offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured (Art. 3 (2)). Consequently, the Treaty on the Functioning of the European Union (TFEU) is stating that citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties (Art. 20 (2)). The first of those rights to be mentioned in the TFEU is the right to move and reside freely in the EU (Art. 21 (1)). According to the Charter of Fundamental Rights of the European Union Every citizen of the Union has the right to move and reside freely within the territory of the Member States (Art. 45 (1) on Freedom of movement and of residence. The right to free movement is thus a fundamental right of all EU citizens. Moving and residing freely within the territory of the Member States is further guaranteed through free movement of workers (Art. 45 to 48 TFEU), and, as far as self-employed persons are concerned, freedom of establishment of nationals of a Member State in the territory of another Member State (Art. 49 to 55 TFEU). These freedoms have been established more than fifty years ago by the Treaty of Rome of 1957 establishing the European Economic Community (EEC), as part of the objective now listed as the second objective of the Union to establish a common market (now internal market), based on a highly competitive social market economy, aiming at full employment and social progress (Art. 3 (3) TEU). The link between citizenship and social market economy established in the treaties has a specific dimension when it comes to employment in the public sector of Member States, due to the special responsibilities of public authorities towards citizens in the good functioning of the EU s internal market and area of freedom, security and justice. A long experience with free movement of workers has enabled EU institutions and public authorities in Member States to establish a body of rules and procedures aimed at improving the possibilities of employment of EU citizens in the public sector while taking into account the specific role of public administration, on the basis of the relevant treaty provisions. This Introductory Chapter explains the purpose, scope and content of such rules and procedures, in order to make clear how they can be maintained and further developed for the benefit of EU citizens, public authorities and the EU s social market economy. It provides a background for understanding and assessing existing practices, achievements, and progresses that still need to be made in the Member States, which will be presented in the further Chapters of this report. 9

10 1) FREE MOVEMENT OF WORKERS AND THE PUBLIC SECTOR 1a. Free movement of workers and EU citizens right to free movement and residence A number of provisions of the EU Treaties and Charter of Fundamental Rights make it clear that free movement of workers is a fundamental principle of European Union law, as a corollary to the right to move and reside freely within the territory of the Member States. These provisions are Art. 3 TEU, which states the objectives of the EU, Art Freedom of movement and of residence of the Charter, as well as Art. 20 and 21 TFEU on EU citizen s rights, and Art. 45 TFEU on the freedom of movement of workers. Art. 45 TFEU contains two elements: the right of EU citizens to work in any Member State (freedom of profession for dependent workers), and the prohibition of any discrimination between workers based upon the nationality for EU citizens. The concrete meaning of Art. 45 has been established to a large extent by directives and regulations which may be adopted by the EU institutions and by the European Court of Justice (ECJ). Relevant EU legislation includes Regulation 1612/68 of 15 October 1968 on freedom of movement for workers within the Community, Regulations 1408/71 and 574/72, replaced as of 1 May 2010 by Regulation 883/2004 on the coordination of social security systems, and the Implementing Regulation 987/2009; and Directive 2005/36 on mutual recognition of professional qualifications; they have to be combined with Directive 2004/38 on the right of citizens to move and reside freely, which is based upon the treaty clauses about citizenship, non discrimination and free of movement of persons (see References). According to Art. 46 and 48 TFEU, new legislation and amendments to existing legislation may be adopted according to the ordinary legislative procedure, i. e. upon proposal of the European Commission, by agreement between the European Parliament and the Council (with qualified majority voting). As a consequence of the fundamental character of the freedom of movement of workers, any limitation of, or exception to the principle has to be interpreted in a strict manner, according to well established rules of interpretation of legal documents. Strict interpretation means that the exception or limitation has to be applied in the way which has the most limited effect on the application of the principle. Such rules of interpretation are not specific to Art. 45 TFEU, they are being used for all treaty provisions which foresee limitations or exceptions to the fundamental principles of EU law. TFEU Article Freedom of movement for workers shall be secured within the Union. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission. 4. The provisions of this Article shall not apply to employment in the public service. Article 45 TFEU has exactly the same wording as formerly Article 39 EC treaty (ex Article 48 EEC treaty). 10

11 In the context of EU law, EU institutions and the Member States have to make sure that the application of an exception or limitation does not empty the principle of its meaning. Any exception or limitation to the free movement of workers has to be compatible with the functioning of the internal market and maintaining the EU s area of freedom, security and justice without internal frontiers. It is also indispensable to take into account that according to Art. 21 (2) Charter, and 18 TFEU, any discrimination on grounds of nationality shall be prohibited. Last but not least, in order to achieve the objectives set up in Art. 3 TEU, treaty provisions need to have the same meaning in all Member States. Therefore concepts like employment, remuneration, conditions of work and employment, offers of employment or grounds of public policy, public security or public health need to be defined at EU level, by the institutions acting as legislator, or by the ECJ when called to interpret EU law. The limitation in Art. 45 (4), according to which its provisions shall not apply to employment in the public service thus cannot be meant to place the public sector outside of the scope of the freedom of movement of workers and EU citizens right to free movement and residence. There is however no EU legislation specific to the limitations deriving from Art. 45 (4) TFEU, and the only guidance as how to understand it comes therefore from the ECJ s case law (see further, under section 1 e). The ECJ has been very often called upon by Member States courts and by the European Commission and thus gave numerous judgements on the interpretation of Art. 45 and the relevant EU legislation. This case law includes a big number of judgements which help defining the notion of worker, what has to be considered as discrimination based upon nationality or an obstacle to the free movement of workers, and the exact meaning of the limitations deriving from Art. 45 (4). 1b. Mutual respect and sincere cooperation between the EU and its Member States With the entry into force of the Lisbon Treaty on 1 December 2009, special attention is being given in the treaties to the principles of mutual respect and of sincere cooperation between the EU and its Member States. These principles, as well as the principle of conferral, according to which competences not conferred upon the Union in the Treaties remain with the Member States, were already well established in the framework of the EC treaty and the case law of the ECJ. TEU Article 4 1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States. 2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State. 3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives. 11

12 Particularly important to the issues linked to free movement of workers in the public sector is the combination of the principle according to which the EU shall respect national identities of Member Stated inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government as well as their essential state functions, and the principle that Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives. A good illustration of how the first of these principles interacts with the freedom of movement of workers in the public sector is given by the ECJ in Case Groener 379/87 (see References). The Groener case Mrs Groener, a Netherlands national, was appealing against the Irish Minister for Education and the City of Dublin Vocational Educational Committee because of the refusal to appoint her to a permanent full-time post as an art teacher after she had failed a test intended to assess her knowledge of the Irish language. The High Court in Dublin had referred to the ECJ in order to know whether requiring the knowledge of Irish was in line with the requirements of Art. 3 (1) of Regulation 1612/68 and with what is now Art. 45 TFEU. In its judgment of 28 November 1989 (case 379/87, point 19), the ECJ said that in the circumstances of the case such a requirement was acceptable because: The EEC Treaty does not prohibit the adoption of a policy for the protection and promotion of a language of a Member State which is both the national language and the first official language. The ECJ added: However, the implementation of such a policy must not encroach upon a fundamental freedom such as that of the free movement of workers. Therefore, the requirements deriving from measures intended to implement such a policy must not in any circumstances be disproportionate in relation to the aim pursued and the manner in which they are applied must not bring about discrimination against nationals of other Member State. Applying this reasoning to the circumstances of the case, the Court further said (point 20): The importance of education for the implementation of such a policy must be recognized. Teachers have an essential role to play, not only through the teaching which they provide but also by their participation in the daily life of the school and the privileged relationship which they have with their pupils. In those circumstances, it is not unreasonable to require them to have some knowledge of the first national language. The ECJ s judgement in the Groener case does not mean that a language requirement for access to a post in the public service is necessarily always compatible with Art. 45 TFEU. The purpose of such a requirement may not be to by-pass the principle of free movement of workers, it has to be a genuine and legitimate policy purpose. Furthermore, the proportionality test (see Section 3) needs to be applied by the relevant authorities and the courts, taking into account the specific circumstances of each case. What is particularly worthwhile noting in this judgement is that it shows how it is possible to combine the application of fundamental principles of EU law with the respect of cultural and linguistic diversity - the latter being now guaranteed by Art. 22 Charter - and of the Member States national identity. The principle of sincere cooperation, which is central to Art. 4 TFEU, has to be applied in a reciprocal way. The EU has to respect the Member States national identity, and the Member States have to ensure the fulfilment of EU law and refrain from any measure contrary to the Union's objectives. As a consequence of a general principle of EU law which applies for instance for so called state aids, i. e. public subsidies and other measures in favour of specific businesses the obligations deriving from the principle of sincere cooperation lie not only with the institutions of Member States central government. They also lie with all public authorities in the Member States, including re- 12

13 gional and local authorities, as well as autonomous or independent public bodies. This principle is particularly important when it comes to free movement of workers in the public service of Member States (see Section 2). 1c. EU citizenship and Member States citizenship As indicated in earlier in section 1 a, free movement of workers is a corollary of the EU citizens fundamental right to move and reside freely within the territory of the Member States. As stated in Art. 9 TEU and in Art. 20 TFEU, Citizenship of the Union shall be additional to and not replace national citizenship. The wording of Art. 45 (4) according to which its provisions shall not apply to employment in the public service, has to be examined in the light of the dual citizenship EU and Member State which has been established by the Maastricht treaty of TFEU Article Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States; [ ] These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder. Article 20 TFEU corresponds in content to Article 17 EC treaty which had been adopted in 1992 with the Maastricht treaty. When the text of Art. 45 TFEU was written in the EEC treaty in 1957, all Member States had provisions in their law, by which their citizenship or nationality was a condition of access to their civil service or public administration; sometimes such provisions were enshrined in their constitution; this easily explains why they agreed on the limitation to free movement of workers as expressed in Art. 45 (4) TFEU. In most Member States, access to the civil service or public administration is being considered as a political right linked to citizenship, in the same way as electoral rights. With the Maastricht treaty, Member States decided to extend electoral rights to EU citizens by giving them the right to vote at local elections in other Member States than their own one. They did not suppress the limitation expressed in Art. 45 (4) TFEU, for which principles for interpretation had been established in the case-law of the ECJ. The principles for the interpretation of Art. 45 par 4 TFEU have been developed in 1982; they were not contradicted by the innovations linked to the establishment of EU citizenship. On the contrary, the principles are being confirmed by the concept of dual citizenship introduced by the Maastricht treaty. Indeed the principles set by the ECJ illustrate the idea that EU citizenship does not replace national citizenship, while it guarantees the right to move and reside freely in the Union and especially the free movement of workers. 1d. The prohibition of discrimination and of obstacles to professional freedom in the public sector The public sector of Member States is not exempted from the application of rules and principles ensuring free movement of workers. As mentioned earlier, every national of an 13

14 EU Member State has, as a matter of principle, the right to work in another Member State (with the exception in some very specific cases of transitional arrangements in the years following accession of new Member States). The concept of worker is not defined in the Treaty, which uses it in Chapter I of its Title III (Free movement of persons, capitals and services), Art. 45 to 48. It has been interpreted by the ECJ as covering any person who (i) undertakes genuine and effective work (ii) under the direction of someone else (iii) for which he/she is being paid. Civil servants and employees in the public sector are workers in the sense of Art. 45 TFEU, hence the rules on free movement of workers in principle apply also to them. The provision of Art. 45 (4) TFEU, according to which it shall not apply to employment in the public service only means that certain posts in the public sector may be reserved to the nationals of the relevant Member State. The ECJ has developed a jurisprudence which includes principles for the application of Art. 45 (4) (see Section 1 e). The biggest part of posts in the public sector cannot be reserved to nationals; there are also many posts which a given Member State opens by own decision to others than its nationals. For all these posts, the rule is that no discrimination may be made in recruitment, working conditions and human resource management, which would be based upon the nationality of a candidate to a post or of the holder of the post. Furthermore there should be no obstacle to the free movement of workers due to legislation, regulation or practice, unless it is duly justified by imperative grounds of general interest and in conformity with the principle of proportionality. Detailed rules for the application of free movement of workers in the public sector are to be found in EU legislation on free movement of workers especially Regulation 1612/68 and free movement of persons especially Directive 2004/38 and in the ECJ s case law on the interpretation of EU legislation and of the relevant treaty provisions. The following is a summary of rules and principles. 1. Prohibition of direct discrimination based on the nationality of EU citizens Any discrimination based upon the nationality of EU citizens is prohibited by the treaty and relevant legislations, with the exception of the possibility to reserve some posts to its own nationals by a member State (see Section 1 e). This means that any EU citizen has a right to: - take up and pursue available employment in the public sector of another Member State than his(her) own, with the same priority as nationals of that State (see Regulation 1612/18 Art. 1 (2) and Art. 3) - be treated in the same way as nationals of the Member State in the public sector of which they are working. As a consequence (see Regulation 1612/68 Art. 7) EU law forbids any legislation, regulation or practice reserving specific aspects of remuneration including supplements of any kind, promotion, advantages linked to working conditions, access to vocational training, or social benefit or tax advantages linked to work etc., to the nationals of a specific Member State, or giving priority to nationals of one member State. The right to equal treatment in accessing and pursuing employment applies not only to EU citizens, but also to their spouse and children under the age of 21 (see Directive 2004/38 Art. 23 and 24) even if they are not EU citizens. 14

15 The only exceptions are the possibilities to reserve certain posts to its own nationals by a Member State for recruitment or promotion (Art. 45 (4) TFEU and Regulation 1612/68 Art. 8, (see Section 1 e) and to exclude non nationals of participating in management structures of public bodies (Regulation 1612/68, Art. 8). It is also forbidden to apply any preference based on nationality for dismissal, as well as reinstatement or re-employment. 2. Prohibition of indirect discrimination based on nationality and obstacles to free movement of workers The principle of non discrimination on grounds of nationality applies not only to direct discrimination, i. e. to legislation, regulations and practices which are based upon the nationality of a candidate to a post or the holder of a post in the public sector, which are necessarily linked to a characteristic of the worker indissociable from his/her nationality. The principle of non discrimination also applies so-called indirect discrimination, i. e. measures instituting or maintaining a differentiation according to Member States which is not linked to the nationality of the relevant person. As a consequence of the principle of non discrimination, a condition to accessing or pursuing employment constitutes an indirect discrimination if the fact that this condition has not been fulfilled in the Member State which imposes it can place a candidate to a post or the worker at a particular disadvantage with respect to a another candidate or worker who has been able to fulfil the condition within the Member State itself. Indirect discrimination The concept of indirect discrimination is used in EU law in many different fields. It derives from the prohibition of discrimination by Art. 18 TFEU. In the field of free movement of workers, it has been defined by the ECJ in the following terms, in its judgment in Case O Flynn C-237/94, points 20 and 21: It follows from all the foregoing case-law that, unless objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage. It is not necessary in this respect to find that the provision in question does in practice affect a substantially higher proportion of migrant workers. It is sufficient that it is liable to have such an effect. Further, the reasons why a migrant worker chooses to make use of his freedom of movement within the Community are not to be taken into account in assessing whether a national provision is discriminatory. The possibility of exercising so fundamental a freedom as the freedom of movement of persons cannot be limited by such considerations, which are purely subjective. The case law of the ECJ, as well as EU legislation on discrimination often distinguishes between overt and covert discrimination, a distinction which seems to overlap very often with that between direct and indirect discrimination. As indicated by Advocate General Sharpston in her opinion of 25 June 2009 in Case Bressol C-73/08, the distinction between direct and indirect discrimination lacks precision. She therefore proposed (under point 53) that as regards discrimination on grounds of nationality, discrimination can be considered to be direct where the difference in treatment is based on a criterion which is either explicitly that of nationality or necessarily linked to a characteristic indissociable from nationality. Whereas the existence of a direct discrimination is easy to establish, as it relates openly to the nationality of the candidate or worker concerned, the existence of indirect discrimination may be far more difficult to assess. This difficulty is however of little relevance in the light of the ECJ s interpretation 15

16 of Art. 45 (3). As stated by the ECJ, for instance Court in Case Bosman C-415/93 (emphasis added): Provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned. The prohibition of indirect discrimination and of obstacles to free movement of workers is not only protecting EU citizens from other Member States than the host Member State: it also protects a Member State s own citizens who make use of the right to free movement and later return to their country of origin. The prohibition of indirect discrimination and of obstacles to free movement of workers applies to conditions for accessing or pursuing employment in a Member State, as well as to conditions for benefiting of a level of remuneration including supplements of any kind, promotion, advantages linked to working conditions like holiday entitlements, access to vocational training, or social benefit or tax advantages linked to work, etc.. Language requirements According to Regulation 1612/68 on freedom of movement for workers, Art. 3 (1): Under this Regulation, provisions laid down by law, regulation or administrative action or administrative practices of a Member State shall not apply: - where they limit application for and offers of employment, or the right of foreign nationals to take up and pursue employment or subject these to conditions not applicable in respect of their own nationals; or - where, though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other Member States away from the employment offered. This provision shall not apply to conditions relating to linguistic knowledge required by reason of the nature of the post to be filled. In Directive 2005/36 on the recognition of professional qualifications, according to Art. 53: - Knowledge of languages: Persons benefiting from the recognition of professional qualifications shall have a knowledge of languages necessary for practising the profession in the host Member State. Such provisions do not mean that Member States are free to impose whatever kind of language condition for access to employment in the public sector or for promotion, or access to levels of remuneration or other advantages linked to employment, etc. As stated by the ECJ in Case Groener 379/87 (see above, section 1 c ) language requirements must not in any circumstances be disproportionate in relation to the aim pursued and the manner in which they are applied must not bring about discrimination against nationals of other Member States. It is not the language requirement as such which is a prohibited obstacle to free movement, but only the manner in which a language requirements is applied. For instance, a Member State s national should not be automatically exempted to demonstrate his or her knowledge of a language for instance through a degree or diploma if nationals of other Member States have to do so. Furthermore, the level of language required should not be higher than necessary for exercising the functions of a given post. A special mention has to be made of language conditions. A language requirement cannot be considered as necessarily linked to a characteristic indissociable from nationality, in other words, a language requirement cannot be the source of a direct discrimination. It might however be an indirect discrimination or an obstacle to free movement, as there are more than 23 different official languages in the EU member States. Contrary to other potential obstacles to free movement, language requirements are taken into account expressly in EU legislation, which considers them as legitimate under certain conditions. No difference should be made according to the Member State where a given condition has been fulfilled such as the acquisition of professional qualification, professional experience, seniority and the like. 16

17 If a condition is easier to fulfil for nationals than for EU citizens of other Member States, it may to be qualified as an indirect discrimination or obstacle to free movement. If a given condition is more difficult to fulfil for somebody who has moved to another Member State or intends to do so than for somebody who permanently stays in the Member State where employment is sought or pursued, it also constitutes an obstacle to free movement. As a matter of principle, professional qualifications an skills, professional experience, seniority and the like, which have been acquired in another than host Member State, have the same value as those acquired in the host Member State, if they are equivalent in content. As far as equivalence is concerned, two situations may occur. First, there may exist EU legislation that has to some extent harmonised conditions the for access to employment or to advantages or benefits having a link with employment, or which have set rules for the recognition of qualifications as for instance Directive 2005/36 on the recognition of professional qualifications. In such a situation, the relevant provisions of the directive have to be applied, which, in most cases, implies a comparison of curricula and content of training. In some cases recognition of qualifications obtained in another Member States is automatic and in others recognition is first subject to compensation measures. The transposition and application of Directive 2005/36 is not specific to the public sector and will not be dealt with in this report as far as mutual recognition of diplomas and qualifications are concerned. Issues linked to recognition of diplomas and professional qualifications will be dealt with only in so far as they play a particular role in access to public employment or in working conditions in the public sector. If an EU directive has not been transposed into national legislation albeit the date for its transposition has expired, it suffices that the relevant provisions of the directive be sufficiently clear, precise and unconditional to render them immediately applicable by Member States public authorities, notwithstanding diverging rules of the Member State s Law. Second, if there is no relevant EU legislation for the type of employment sought or pursued such as for instance employment in the sectors of transport or general administration Member State s authorities are required to assess in an objective way whether the seniority, professional experience, skills or other, which have been acquired in another Member State correspond to what is required by its national legislation or regulations. A mere formal aspect, like for instance the denomination of a function, may not be taken into consideration in order to conclude to the absence of equivalence between what has been acquired abroad and what is needed according the host Member State s law. It is possible for the Member State s authority to require the candidate or holder of employment to demonstrate that he/she has acquired the missing experience, knowledge or skills before taking service or obtaining a change in his/her working conditions; this is only admissible if the person s qualification or experience does not correspond with the content of relevant national legislation or regulations, or corresponds only partially to them. In many Member States, access to, and working conditions in the public sector, are set in detail in laws and regulations, without necessarily taking into account the fact that conditions of access or working conditions might be an obstacle to free movement. Professional experience and/or seniority is often either a formal condition for access to a recruitment competition in the public sector, 17

18 or additional merit points are awarded for it during such a procedure (which places candidates at a higher position on the final list of successful candidates). Professional experience and seniority The ECJ has been asked to judge whether such conditions are admissible (see amongst others Cases Scholz C-419/92, Schöning C-15/96, Commission v. Greece C-187/96; Österreichischer Gewerkschaftsbund C-195/98; Köbler C-224/01, Commission v. Italy C-278/03, Commission v. Spain C-205/04, Commission v. Italy C-371/04). According to these judgements, previous periods of comparable employment acquired in another Member State must be taken into account by Member States' administrations in the same way as applies to experience acquired in their own system. When taking into account professional experience and seniority, previous periods of comparable employment completed in the public service of another Member State must be equally taken into account. Salaries, grades, right to promotion etc. are often determined on the basis of previous professional experience and/or seniority. If the professional experience and/or seniority acquired in another Member State is not correctly taken into account, these workers consequently either have no access or less favourable access to the other Member State's public sector or must restart their career with a lower salary or at a lower grade. Guidelines of the European Commission for the assessment of conditions of seniority and professional experience (Communication 694 of 2002 point 5. 3) The following guidelines at least have to be respected when adapting national rules/administrative practice: - Member States have the duty to compare the professional experience/seniority; if the authorities have difficulties in comparing they must contact the other Member States' authorities to ask for clarification and further information. - If professional experience/seniority in any job in the public sector is taken into account, the Member State must also take into account experience acquired by a migrant worker in any job in the public sector of another Member State; the question whether the experience falls within the public sector must be decided according to the criteria of the home Member State. By taking into account any job in the public sector the Member State in general wants to reward the specific experience acquired in the public service and enable mobility. It would breach the requirement of equal treatment of Community workers if experience which, according to the criteria of the home Member State, falls into the public sector were not to be taken into account by the host Member State because it considers that the post would fall into its private sector. - If a Member State takes into account specific experience (i. e. in a specific job/task; in a specific institution; at a specific level/grade/category), it has to compare its system with the system of the other Member State in order to make a comparison of the previous periods of employment. The substantive conditions for recognition of periods completed abroad must be based on non-discriminatory and objective criteria (as compared to periods completed within the host Member State). However, the status of the worker in his previous post as civil servant or employee (in cases where the national system takes into account in a different way the professional experience/seniority of civil servants and employees) may not be used as criterion of comparison. - If a Member State also takes into account professional experience in the private sector, it must apply the same principles to the comparable periods of experience acquired in another Member State's private sector. The complaints and Court cases so far have only concerned the taking into account of professional experience acquired in the public sector of another Member State. Nevertheless, the Commission wants to point out that due to the very varied organisation of public duties (e. g. health, teaching, public utilities etc) and the continuous privatisation of those duties, it cannot be excluded that comparable professional experience acquired in the private sector of another Member State also has to be taken into account, even if private sector experience is in principle not taken into account in the host Member State. If an obstacle to free movement is created by not taking into account such comparable experience, only very strict imperative reasons could justify it. Requirements which apply to periods spent in other Member States must not be stricter than those applicable to periods spent in comparable institutions of the Member State. The prohibition of indirect discrimina- 18

19 tion or obstacles to free movement is not an absolute one unlike the prohibition of direct discrimination based upon nationality for access to posts other than those covered by the exemption of Art. 45 (4) TFEU. It results from Art. 45 (3) TFEU that indirect discrimination or obstacles to free movement are admissible if they result from limitations justified on grounds of public policy, public security or public health. As indicated earlier, such limitations are subject to the application of the principle of proportionality: they have to be appropriate in order to secure the specific Member States interest of public policy, public security or public health; they have to be necessary in order to secure the said interest, and there should not be another way to secure the same interest while having a lower impact on free movement. Furthermore, when such a limitation is being applied, the relevant Member State s authority has a duty to give grounds and the decision must be subject to judicial review. As indicated by the ECJ in Case Kraus C-19/92: any refusal of authorization by the competent national authority must be capable of being subject to judicial proceedings in which its legality under Community law can be reviewed and that the person concerned must be able to ascertain the reasons for the decision taken with respect to him. As far as professional experience and seniority conditions are concerned, the ECJ has not accepted until now any of the justifications put forward by Member States in the framework of references for preliminary ruling submitted by national courts or infringement procedures against Member States have been presenting arguments relying on the specific characteristics of employment in their public sector, such as the fact that recruitment was done as a matter of principle by open competition; the wish to reward loyalty; differences in teaching programmes; differences in career structures; reverse discrimination that would harm their own nationals; difficulties in making a comparison; the principle of homogeneity of civil service regulations. In the relevant cases, the justifications either were not presented according to a clear, coherent and convincing argumentation, or they did not meet the requirements of the principle of proportionality. In some cases the ECJ considers that the policy purposes put forward by a Member State are not covered by the concept of imperative grounds of public interest, which summarizes the indications of Art. 45 (3) and 52 (1) (on the freedom of establishment), i. e. grounds of public policy, public security or public health. It has to be taken into account that most language versions to start with the Dutch, French, German and Italian versions, which were the first original versions of the EEC Treaty where they first appeared, use a more restrictive wording than the apparent meaning of public policy, namely public order (openbare orde, ordre public, öffentliche Ordnung, ordine pubblico), hence the notion of imperative grounds used by the ECJ. 3. Free movement of workers in the public sector test This report contains recommendations as how to apply the principles for the interpretation of Art. 45 (4) and the principles of EU law applicable to free movement of workers in the public sector (see Chapter 6: Recommendations). The report proposes a Free movement of workers in the public sector test for the use of Member States legislators and regulators, officials in charge of recruitment and human resource management in public administration and public sector agencies, as well as for courts, tribunals and ombudsmen. 19

20 1e. The exemption of employment in public administration in Art. 45 (4) TFEU As indicated earlier, Art. 45 (4) TFEU is stating that The provisions of this Article shall not apply to employment in the public service. Regulation 1612/68 on freedom of movement for workers refers only partially and indirectly to the provision of the Treaty, in its Art. 8 which states that a worker from another Member State may be excluded from taking part in the management of bodies governed by public law and from holding an office governed by public law. In the absence of any specific directive or regulation that would have established a common understanding of what the Treaty mentions as employment in the public service, the ECJ had eventually to set criteria in this respect. In order to understand the case law relating to Art. 45 (4) TFEU, it is indispensable to keep in mind the principles of interpretation which are normally being used in EU law in order to ensure the homogeneity of its application in all Member States and the effective application of the obligations it contains. Furthermore, it is necessary to take into account that EU law is written in 23 languages and that all language versions have the same legal value. The English language wording of Art. 45 (4) can be misleading, due to the words employment and public service. The other language versions, to start which French, German and Italian, as well as Dutch, which were the official languages of the EEC Treaty in 1957 make this wording clearer, but only to some extent. 1. The meaning of employment in : nationality as a condition for access to certain posts three consequences Employment in has the same meaning as the German Beschäftigung in, but the French version says emplois dans, and the Italian version impieghi nella which would be better translated by posts in. EU institutions, applying the principle that exceptions to the rule have to be interpreted in a strict way, have always understood employment in as meaning posts in, as such an interpretation is limiting the scope of the exception. The ECJ has indirectly faced this issue for the first time in its judgement of 12 February 1974 in Case Sotgiu 152/73. The German Federal Court of Labour had asked the ECJ whether having regard to the exception provided for in Art. 45 (4) workers employed in the public service of a member state by virtue of a contract of employment under private law, may be excluded from the rule of non-discrimination. The ECJ replied (in point 6 of its judgement) that the provision of Art. 45 (4) was to be interpreted as meaning that the exception made by this provision concerns only access to posts forming part of the public services and that the nature of the legal relationship between the employee and the employing administration is of no consequence in this respect. The first part of the quoted sentence showed that the ECJ understood indeed employment in as meaning posts in, as indicated by the French and Italian versions of the treaty. Furthermore the ECJ recalled in the same judgement (under point 11) that the rules regarding equality of treatment, both in the treaty and in Article 7 of Regulation no 1612/68, forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result. a. As a logical consequence, in order to decide whether a nationality condition may be applied by a Member State for accessing employment in the public service, Art. 45 (4) 20

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